When Candice Jackson was appointed as a deputy director in the Office of Civil Rights in the U.S. Department of Education, I knew she would be a lightning rod for her libertarian views – and she was. That most people on the left hate libertarianism (or any kind of civil liberties at all – a far cry from the leftists of yesteryear) was driven home to me when Annie Waldman of Pro Publica and Edwin Rios of Mother Jones contacted me for interviews – and I accepted.
More than a decade ago, Jackson and I co-authored a number of articles and academic papers dealing with federal criminal law and how the feds have subverted justice by destroying the rights of the accused – all with the aid of a Congress that does not care about individual rights or the U.S. Constitution. (Here is a sample piece that appeared in Reason in 2004.) From the RICO statutes to the conviction and imprisonment of Martha Stewart, we documented how federal criminal law has become so malleable that it makes felons out of nearly all of us, making us vulnerable to politically-motivated federal prosecutors looking for a scalp. She and I coined the term “Derivative Crimes” to describe how federal criminal law works.
(The actual charges are fictitious, such as “racketeering,” which actually are derived from other acts, mostly alleged violations of state laws committed by the accused. However, the prosecution does not have to prove any of the individual acts beyond a reasonable doubt, which de facto lower the standards for criminal proof to something closer to the civil “preponderance of the evidence.”)
The Candice Jackson I always have known is someone concerned with right and wrong and has a heart for people whom state authorities have victimized. In the years she and I wrote together, she was uncompromising on this point, and I knew I never would have to worry about her moral compass. Her writing was on-point, professional, and our work blended well together. (We used to remark that it was difficult for one to see where one of us left off and the other began.) I was (and am) passionate about the rights of the accused and due process of law and she shared that passion with me.
Once upon a time, the left would have appreciated her passion for the rights of the accused and due process of law. Conservatives, on the other hand, would have been suspicious of her criticisms of federal criminal law and federal prosecutors. After all, Republicans were behind the 1984 Crime Bill, which put the drug war and asset forfeiture on steroids, and helped to turn local police into an occupying army, with police being the brutal enforcers of lawmaking bodies of all levels.
That was then. Today, the American (and British) left has abandoned its fealty to free speech and due process of law and is becoming increasingly authoritarian in its thinking, and such illiberal views now are fully embraced by many Democrat politicians. For example, a few years ago, Gov. Andrew Cuomo of New York, a Democrat, declared that people who opposed abortion on demand “have no place in New York” and demanded they leave the state. (He later walked back on his declaration after someone pointed out to him that most Catholic priests would have to leave and Cuomo allegedly is a practicing Catholic.)
More disturbing is the support given to Rep. Jared Polis, a Democrat from Colorado, who in a congressional hearing on Title IX and sexual assault declared to applause from the audience:
If I was running [a private university], I might say, “Well, you know even if there’s a 20 to 30 percent chance that it happened, I would want to remove this individual.”
… if there’s 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people.
Although Polis later slightly backtracked on what he said, given the backlash after he clearly was stating that guilt and innocence should not matter when someone is accused of sexual assault, it is clear that the congressman was speaking for a lot of advocates who seem to believe that if someone even hints at due process in such cases, that person is advocating that all coeds on campus be brutally raped. (I am not kidding, here.)
Lest one think I am exaggerating, we should look at media responses when Department of Education Secretary Betsy DeVos recently stated that the DOE would be vigilant about both sexual assault claims and due process in adjudicating them. Here is USA Today’s hysterical response:
Despite overwhelming evidence that sexual assault is endemic on college campuses, disproportionately affecting women, Education Secretary Betsy DeVos and Candice Jackson, head of the Office of Civil Rights, have signaled they will abandon Title IX’s application to the crisis of sex-based violence in our schools.
Note that neither DeVos nor Jackson have called for an end to such investigations or campus disciplinary procedures. What they have said is that the current regime, which arose in 2011 after the Obama administration told colleges and universities that they must adjudicate accusations of sexual assault or lose federal money, needs to include a modicum of due process. This reverses what the Obama administration declared in its infamous “Dear Colleague” letter when it discouraged any cross-examination of the accuser by the accused, and all-but-forbade the accuser to use an attorney in his (or sometimes, her) defense.
The Obama administration made it very clear as to what it wanted: more males to be expelled from colleges and universities for sexual assault, even if local police and prosecutors did not believe a sexual assault charge was warranted. By demanding the lowest legal standard possible (preponderance of the evidence) but essentially denying the accused the opportunity to employ a defense – something that is permitted in civil court where the preponderance standard applied, the Obama DOE was openly demanding something akin to kangaroo courts, and threatened massive punishments to colleges that did not get with the program.
In its editorial, USA Today engaged in the kind of double-speak that has become all-too-common when the subject of sexual assault on campus is broached. It first said that the civil standard is fine, but it failed to point out that if an accused person is not permitted to mount a defense and the de facto standard is to assume guilt from the outset (as pretty much is the case, as KC Johnson and others have demonstrated), then we are dealing with something akin to a Stalin show trial. The newspaper’s words speak for themselves:
Secretary DeVos has also undermined the Department’s commitment to Title IX by suggesting the preponderance of the evidence standard applicable to other civil rights laws is somehow fundamentally unjust when applied to sex discrimination in schools. Exaggerating the risks to accused students reinforces the fallacy that protecting women harms men. In fact, the standards currently in place under Title IX require fair procedures to determine whether sex-based violence has taken place. The standards provide procedural safeguards for both parties in these disputes and arguably set a higher bar for Title IX cases than other school disciplinary actions.
As Emily Yoffe of The Atlantic has shown in her superb three-part series on the current campus sexual assault issue, the Obama administration clearly set out to deny even a modicum of due process to the accused and threatened punishment to institutions of higher learning that permitted someone accused to mount an adequate defense. Yoffe writes:
On too many campuses, a new attitude about due process—and the right to be presumed innocent until proved guilty—has taken hold, one that echoes the infamous logic of Edwin Meese, who served in the Reagan administration as attorney general, in his argument against the Miranda warning. “The thing is,” Meese said, “you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect.”
When Rios and Waldman interviewed me, I specifically asked each one if they supported the “Polis standard” (the accusation by itself is incontrovertible proof of guilt), or if they supported at least some due process. Both refused to answer, which essentially was an endorsement of Polis, and their publications have backed that viewpoint.
This is important, because when we see the media engaged in a campaign to essentially bring back the legal standards of the infamous Scottsboro Boys case of 1931 – which all fair-minded people, liberal and conservative, have denounced as utterly unjust – then we know that we are dealing with a movement that is equal in some ways to the darkest days of 20th Century totalitarianism in which to be accused by authorities was proof of guilt.
(Yoffe, in Part III of her series, highlights the sad fact that a large percentage of campus sexual assault cases involve white coeds accusing black males of sexually assaulting them. Interestingly, while racial issues dominate much of the public discussion and have created huge divisions on campus, racial issues involving accusations of sexual assault seem to be verboten. Interviewing an Ivy League professor who has done research into this issue, Yoffe writes: The professor requested anonymity, citing the difficulties of publicly discussing the subject. The same media and academic establishment that cries “racism” even in the study of physics and mathematics suddenly is silent when we see real racism in action conducted by progressives like themselves.)
A recent incident involving Candice Jackson actually helps to prove the points I’m trying to make in this article: that the left is engaged in Orwellian thinking. In an interview with the New York Times, Jackson made even what she admits was an unwise statement (although I cannot be sure it is not the truth):
Rather, the accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.
As one can imagine, the media jumped on that comment. Rios wrote in Mother Jones under a headline that said Jackson claimed 90 percent of assault claims were “bogus” (something she never said):
…Sen. Patty Murray (D-Wash.) called on Betsy DeVos to remove the Education Department’s acting civil rights chief for her “callous, insensitive, and egregious” comments about campus sexual assaults and her rollbacks of civil rights enforcement.
As one can imagine, the USA Today editorial jumped on that comment, claiming that Jackson’s 90 percent figure was a lie. However, the editorial then cited a study claiming that one-fifth of women on campus were sexually assaulted and that the number probably was higher, yet it already has been proven that the study USA Today referenced is patently untrue. (The irony is that if the discredited study were accurate, then U.S. college campuses would be the most dangerous place in the world for women, even more dangerous than war zones, such as ISIS-controlled areas, where rape is used as a weapon of war. That the editors of USA Today seem incapable of applying even basic logic does not speak well of the mainstream media in this country.)
There is no way to know of the 90 percent number Jackson used is accurate, and I doubt she had checked any statistical measures before she made the statement, and it is clear she was essentially using that term as a form of hyperbole to demonstrate that the sexual assault claims do not involved sexual assault as most people would define it. However, I would add that it probably is more accurate than the “one-in-four” number that the Obama White House and the mainstream media have used. Furthermore, Jackson was not even dismissing the claims, saying only that alcohol is a major factor in an overwhelming number of cases in which someone on campus is accused of sexual assault.
If one steps back and tries to take even a semi-objective view of what is happening with campus sexual politics, the problems are obvious. First, sexual standards among American young people already are loose, with the “hookup culture” already established even before students enter college and, second, binge drinking of alcohol on campus is a common thing, yet another casualty of federal intervention, this time the age-21 drinking laws. The combination of these two things is going to result in a lot of drunken sex and, all-too-often, not a little bit of regret afterwards.
In the not-so-distant past, most people – including the majority of feminists – would have understood that such encounters were murky at best and that unwise behavior leads to regretful outcomes. Today, however, despite the claims by progressives that they “don’t want government in the bedroom” (at least when the subject at hand is abortion on demand), nonetheless today they, well, want government in the bedroom, or at least college administration in the bedroom.
Thanks to the Barack Obama administration’s change in emphasis on the administration of Title IX, the hard left on campus has been able to totally politicize sex, and by so doing has created conditions that breed Orwellian outcomes. Many left-wing administrators and faculty members needed no encouragement to place themselves, figuratively-speaking, at the scene of every sexual encounter on campus, but when the Obama administration included financial threats combined with bureaucratic incentives to force outcomes that defy any reasonable standards of justice.
In my interview with Rios, he expressed shock when I told him that Jackson has one of the strongest moral compasses of which I know. In his view, she was nothing more than a “rape denier” who wants coeds to be mercilessly raped, and he and Waldman and others have twisted facts and quotations to create a person that doesn’t exist. We should not be surprised. People like Waldman and Rios are following a narrative just as their forebears in Scottsboro, Alabama, followed a similar narrative in 1931. Neither wants to know the truth (despite Waldman’s claim to me that all she wants “is the truth” – her truth, I might add), especially if it falls outside their hard-left viewpoints.
We need more people in Washington like Candice Jackson, people who actually care about right and wrong and are not looking to feather their own nests. Not surprisingly, the Washington Establishment has risen up to defame her, lie about her intentions, twist her statements, and try to keep the status quo alive, despite the foundation of lies upon which that status quo is built. In other words, it is business as usual in the nation’s capital.